The Brethren

by Bob Woodward

  Neither Nixon nor Mitchell asked Blackmun about his judicial philosophy. The judge had three daughters in their twenties. Nixon asked if any were "hippie types." Blackmun assured him that none was.

  He saw his lifelong friendship with Burger as his greatest potential problem. They had gone to grade school together, and Blackmun was best man at Burger's wedding in 1933. After Burger came to Washington in 1953, they corresponded, and they saw each other when Burger came to Minnesota to visit his family.

  "Look," Nixon said, "you two grew up together. Your paths separated when you went to different high schools. But you have remained good friends. I don't see anything wrong with that." He wanted to go ahead. The administration was ready for an offensive. A detailed financial report on Blackmun was released to the Senate Judiciary Committee.

  Nina Totenberg, who covered the Supreme Court for the weekly newspaper the National Observer, was one of Washington's most aggressive reporters, unwilling to settle for the usually placid Court coverage. A specialist in digging out behind-the-scenes detail, Totenberg flew to Minneapolis to interview Blackmun's eighty-five-year-old mother. Mrs. Blackmun told Totenberg that the Chief Justice and her son talked to each other on the telephone almost once a week. They talked about all sorts of things, legal, political.

  In an article Totenberg wrote that Mrs. Blackmun had recounted how once, the previous year, the Chief Justice had issued an open invitation to her son, "telling him that any time he needed assistance in sorting out recent Supreme Court decisions, he, the Chief Justice, would be glad to help. But Judge Blackmun, says Mrs. Blackmun, quickly declined the invitation, making it clear to the Chief Justice that he did not think receiving such assistance would be proper."

  Blackmun was enraged at Totenberg. His relationship with Burger was the thing he was most sensitive about. For a moment, he considered withdrawing from the nomination. But Blackmun was ready when he faced Eastland's Senate Committee on April 29. He was tense, but determined to be candid. He knew the key was to show no arrogance, to be self-effacing. It came naturally to him.

  Some of Haynsworth's opponents were chagrined at the fact that they were now supporting Blackmun. Haynsworth's alleged conflicts of interest, in retrospect, had not really amounted to more than the minor technical conflicts of interest involving Blackmun, a point Southern Senators could not resist making.

  Blackmun was in Minnesota on the day of the final vote. He was trying to finish his appeals court work when two large canvas bags of cert petitions arrived from Washington. Burger soon called. "Did you get your mail?" he asked.

  "Yes," Blackmun said jovially. "What's the idea?"

  "You've got to go to work."

  "I've got plenty of work out here," Blackmun said jokingly. "You're not my boss yet."

  Burger wanted him in Washington before the term ended the next month. After a full year with only eight justices, nearly two hundred petitions for review had been held for "Justice X." In many of these cases, there were three votes to grant a hearing and Blackman could supply the fourth. On cases that questioned the constitutionality of the death penalty, the feeling had been that the Court should not even grant a hearing until it was certain there would be nine members to review the cases.

  Blackmun was overwhelmed at the prospect of making so many important decisions. When he was working on the appeals court, there was always another review authority, the Supreme Court, to correct any mistake he might make. Now, on these two hundred cases, it would be solely up to him. Blackmun was very cautious in dealing with the pending cert petitions. Burger did not want to take many of the cases. Blackmun finally voted to grant hearings in only three or four. Brennan was disappointed and concluded Burger had another vote.

  The Chief was in a good mood. His first term was about to end, and there had been no major blowup. He himself couldn't have picked a better person to fill Fortas's seat.

  Burger had paid attention to his administrative and housekeeping chores. He had tried to add life and warmth to the building and to his relations with the other Justices whenever possible. He had brought geraniums from his home to be planted in the courtyards. He made a personal gift of silver goblets to his fellow Justices to be used on the bench instead of the ordinary drinking glasses. The lunch hour had been extended from thirty minutes to an hour so the Justices would have more time to converse in their private dining room. (Douglas usually ate alone in his chambers and found the extended lunch period ludicrous. Black thought the additional half hour wasteful; he told Burger they might all begin to overeat.)

  The Chief tried to remember each Justice's birthday or anniversary of service on the Court. On May 19, he sent out a memo:

  Dear Brethren:

  Tomorrow, Wednesday, is John Harlan's birthday. If there are a sufficient number at luncheon we will break out a bottle of chilled German grape juice to take note of the occasion. Please let us know if you will be available. Would 12:30 be convenient for all?

  Brennan, fiercely optimistic, had initially adopted a softer line on the new Chief than Douglas had. For years, at their regular weekly lunch, Bazelon had told Brennan tales of Burger's churlishness, but Brennan preferred to accept any plausible explanation for the Chief's actions. On substantive matters, Brennan characterized Burger as "ideologically reactionary but not evil." But his disappointment with the new Chiefs style in running conferences had begun to increase. The fun and fascination Brennan had felt as the playmaker on the Warren Court was gone now. He was growing skeptical of the new Chief and about his own future role on the Court. By the end of the term, he was talking openly of resigning.

  The other Justices also began to resent Burger's style.

  In preparation for Blackmun's swearing-in ceremony on June 9, the Chief sent a memo saying that Blackmun would be "traveling light" and would wear only a dark business suit. Burger said he himself would "go a bit more formal but without 'cutaway.' Members are free, of course, to follow any course they desire."

  Black was irritated about having someone even remind him that he could wear what clothes he wanted. Burger was much too concerned with appearances. He scrawled a note, "I shall go to the Court dressed as usual."

  At the swearing-in ceremony, Blackmun took his place at the far-left side of the bench, the seat reserved for the junior member. The seat had, in the past, been occupied by Oliver Wendell Holmes, Benjamin N. Cardozo, and Felix Frankfurter. Blackmun pulled out the drawer in the bench by his seat and started examining the contents. He found a copy of the Constitution stamped "O.W. Holmes," and apparently signed by Frankfurter. Suddenly White's loud whisper came from his right. "Harry! Harry, where's your spittoon?" Blackmun looked around as White snapped his fingers to one of the two pages that sat behind the bench to run errands for the Justices. "Get the Justice his spittoon," he ordered. The traditional spittoon, used as a wastebasket, appeared. Blackmun glanced down the bench. Without looking up from his papers, Douglas flipped an empty cough-drop box behind him. It had barely hit the floor before a page picked it up. Moments later, the page handed Douglas a fresh box.*

  Blackmun had arrived at the busiest time of the year, the "June crunch," when the undecided votes in dozens of cases were finally cast and the results announced. These cases were often the most important and difficult to decide, the Justices having wrangled over them much of the term. By tradition and informal agreement, the Court tried to take final action on each of the argued cases before the end of the term. A decision might be issued. A case might be dismissed as improvidently granted—meaning that a majority had decided, at times even after oral argument, and often for technical reasons, not to decide the case. Or a case might be put over for re-argument the next term. This year there were sixteen cases put over for re-argument, an unusually high number.

  Blackmun sat quietly at the last conferences. He had not participated in the hearings, so he could not vote. No one said anything about it to him directly, but he soon realized that they were putting over most of the cases because the vote
was deadlocked 4 to 4. His vote would decide most of them.

  At a special conference on Thursday, June 25, Blackmun watched as Black and Harlan squared off on two cases. The cases (Sanks v. Georgia and Boddie v. Connecticut) involved the constitutionality of state laws requiring that everyone, including the poor, pay a small court fee to fight a housing-eviction notice or to obtain a divorce. Harlan thought the fees, small as they were, violated the guarantee of due process, a guarantee that amounted to the right to have a fair hearing. The fees made it virtually

  * See National Geographic Society, Equal Justice Under the Law: The Supreme Court in American Life, rev. ed., p. 127.

  impossible for the poor to get their day in court. Harlan had been assigned the cases, and he had the formal votes for his opinions. He wanted the cases to come down on Monday.

  Black said he wanted more time. He had circulated his dissent in draft form only that morning. The cases were an outrage, he indicated. The Court had no license to make such a broad application of due-process guarantees. Nothing in the Constitution granted equal access to the courts in civil cases, such as divorce or eviction hearings. The Constitution granted that access only in criminal cases. The Court's intent to hand down the decisions would be a revival of the notion of "substantive due process"—a generalized notion of fairness as defined by the Justices. This doctrine had been used, much to Black's dismay, to protect corporations from government regulations. "The Court doesn't enjoy a roving jurisdiction to do good," Black often told his clerks. It was not a matter of whether a law was unfair or fair, as long as it applied to everyone equally. As long as everyone had to live with it, the legislature that made the law would have to be accountable, not the Court.

  Harlan was adamant. He would respond to Black by revising two footnotes. He would not rewrite the whole thing, nor would he agree to put the cases over. The Court had already put over a large number of cases and there was no reason to add this one to the list. He wanted his opinions to come down.

  Black played his last chip. By tradition, a single Justice, even a dissenter, could insist that an opinion not come down until he had finished his own opinion. This was the conference's equivalent of senatorial courtesy. Black said he needed more time for his dissent in the eviction case. He really wanted the time to lobby some of the other Justices.

  Harlan knew what Black was up to. He had seen this many times before.

  Blackmun sat wide-eyed as the two went back and forth. Harlan seemed truly irked. If the eviction case were held over, then, Harlan pointed out, they might as well also put over the divorce-case opinion, since it relied heavily on the reasoning used in the eviction case.

  A majority also wanted the opinions to come down. They urged Harlan to see if he could make the revisions by the next day's special conference. Harlan grudgingly consented. In spite of the sometimes heated argument, Harlan and Black walked out arm and arm, gently arguing as they headed down the hall to their chambers.

  Harlan called in his clerks and told them what they were going to do: they would take the legal reasoning used in the eviction case and put it into the divorce case. They worked nearly all night cutting and pasting, and at conference the next day, Harlan presented his revisions.

  Black wasn't satisfied with Harlan's massive effort of the previous night. "I don't want them to come down," Black said. Such a major opinion would have implications for many other cases.

  Burger stepped in. He, too, wouldn't mind a little more time to go over both cases.

  That did it.

  Harlan was furious; Black had won again. He was still put out after conference as he prepared to go to dinner at Black's house. But by evening, all was forgiven.

  Blackmun was dumbfounded. All over the country there were people who couldn't get into court on civil cases because they couldn't pay the fees. A majority of the Supreme Court had resolved the problem. But a single Justice had the power to force them all to wait. And now he was a Justice and had that same power.

  1970 Term

  As his second term approached, Burger worried increasingly about how his tenure would measure up against Earl Warren's. In Warren's first term, the Court had handed down the Brown school desegregation ruling. Over the next sixteen years, his monumental reputation for leadership and integrity had rested in large part on the continuing chain of school desegregation cases.

  Burger's first term had not provided any such opportunity, but now Burger saw a wave of cases rising through the lower courts that presented the potential for a landmark decision. The Court's per curiam decision the term before in the Mississippi desegregation case (Alexander v. Holmes County) had made it clear the Court meant that desegregation was to occur now. The new cases raised the question of how it was to be achieved.

  All that summer, the Supreme Court had been under fire over what seemed to be rapidly becoming the country's most volatile domestic political issue—busing. The furor had been growing since the spring of 1970, when U.S. District Court Judge James B. McMillan ordered each of the public schools of Charlotte, North Carolina, and surrounding Mecklenburg County to desegregate, not piecemeal, but totally. Like many federal judges, McMillan felt that desegregation no longer meant simply putting a single black student, a James Meredith, into an otherwise all-white school, like the University of Mississippi.

  Since roughly 71 percent of the school population of the Charlotte area was white and 29 percent black, McMillan felt that a 71—29 white-black pupil ratio for each school should be the goal. While conceding that "variations from the norm may be unavoidable," he had radically altered school attendance zones and ordered busing for 13,000 additional students to achieve "racial balance," as it was called, in each school.

  Burger felt that what McMillan had ordered amounted to forced racial mixing, an attempt to remedy residential segregation. This went far beyond the intent of the Brown cases, which ordered desegregation—the end of separate schools for blacks and whites. That was a proper task for the Court, Burger thought, and he supported it. But this was an order for integration.

  "Desegregation" and "integration" are often used interchangeably, but they are very different matters, Burger told his clerks. "Integration" implied more—racial mixing, strict racial balance. Desirable as this might be in a perfect society, it had no legal foundation as an appropriate ruling by the Court.

  Five weeks after the McMillan order, Burger published a concurrence to an opinion in another desegregation case (Northcross v. Memphis Board of Education). Though he did not mention McMillan's Charlotte opinion, Burger suggested that it was now time for the Court to determine how far lower court judges could go in ordering desegregation in general and busing in particular. He posed several key questions.*

  Two weeks later, the President issued an extraordinary eight-thousand-word policy statement on desegregation. Though he did not address the Charlotte situation specifically, the President told how he himself would answer Burger's questions. Although he had supported the Warren Court's Brown decisions, Nixon found the situation far different now. The reason some black children were still going to all-black schools, he said, was that they lived in all-black neighborhoods. Children should attend their neighborhood schools, the President argued. These lower court decisions, ordering busing to equalize racial proportions in each school, went far beyond what the Brown decisions required. "Unless affirmed by the Supreme Court, I will not consider them as precedents to guide administration policy elsewhere," Nixon declared. He was shifting the onus of public hostility from his administration to the federal court system. A challenge had been issued.

  * It was an area the Chief indicated he would like settled as soon as the Court was at full strength. The Fortas seat had not yet been filled at the time, and Marshall was hospitalized.

  Shortly after Nixon's statement, the Fourth Circuit Court of Appeals cut back substantially on the McMillan order, ruling out McMillan's extensive busing of elementary-school children. Calling for "reasonableness," without definin
g it, the majority opinion said that all-black schools need not be totally eliminated if there was "an intractable remnant of segregation" in a large black neighborhood. McMillan's extensive busing had created too great a burden on the community. He had tried too hard to reach his goal of a nearly perfect racial balance in each school, the court implied. It remanded—sent back—the case to him for further hearings.

  Before McMillan had an opportunity to hold his new hearings, some black parents appealed the case to the Supreme Court (Swann v. Charlotte-Mecklenburg Board of Education). They wanted a quick ruling to the effect that every school must be desegregated. Only Black, Douglas and Marshall had been prepared to postpone the end of the previous term in order to hear the case. The others agreed to hear it in October 1970. And the Court reinstated McMillan's busing of elementary-school children until it would have a chance to rule. Therefore, McMillan's massive busing plan would go into effect when the schools opened in September.

  In the meantime, McMillan, encouraged both by the Fourth Circuit's ratification of some of his basic approach and by the Supreme Court's willingness to hear the case, went ahead and held his further hearings. And, once more, he ordered extensive busing of elementary-school children.